Appeal of Girsh

• Decision Date: 13 February 1970
• Citation: 263 A.2d 395,437 Pa. 237
• Parties: , 1 ERC 1140 Appeal of Joseph GIRSH from decision of Board of Adjustment of Nether Providence Township.
• Court: Pennsylvania Supreme Court

Page 395

263 A.2d 395

437 Pa. 237, 1 ERC 1140

Appeal of Joseph GIRSH from decision of Board of Adjustment

of Nether Providence Township.

Supreme Court of Pennsylvania.

Feb. 13, 1970.

Rehearing Denied April 13, 1970.

Louis F. Floge, Philadelphia, for appellant.

John W. Wellman, Chester, John R. McConnell, Philadelphia, for Township of Nether Providence.

E. Barclay Cale, Jr., John R. McConnell, Philadelphia, for the General Council of Civic Ass'ns of Nether Providence Twp. et al.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

By agreement dated July 13, 1964, appellant contracted to purchase a 17 1/2 acre tract of land, presently zoned R-1 Residential, ¹ in Neither Providence Township, Delaware County. Appellant agreed to pay a minimum of $110,000 (later changed by agreement to $120,000) for the property. He further agreed to request the Township Board of Commissioners to change the R-1 Residential zoning classification so that a high-rise apartment could be built on the property and to pay $140,000 if this request were granted.

Nether Providence is a first-class township zoned either R-1 or R-2 Residential, which persons and an area of 4.64 square miles. Approximately 75% Of the Township is zoned either R-1 or R--2 Residential, which permit the construction of single-family dwelling units on areas not less than 20,000 and 14,000 square feet, respectively. Multiunit apartment building, although not Explicitly prohibited, are not provided for in the ordinance. The Township contains the customary commercial and industrial districts, as well as two areas where apartments have been permitted and constructed only after variances were secured.

After the Board refused to amend the zoning ordinance, appellant sought a building permit to construct two mine-story luxury apartments, each containing 280 units. ² The permit was refused since the R-1 Residential classification does not permit multiple dwellings. Appellant appealed to the Zoning Board of Adjustment and announced that he would attack the constitutionality of the zoning ordinance in lieu of seeking a variance. The Zoning Board sustained the ordinance and denied relief. The Court of Common Pleas of Delaware County affirmed, and appellant took this appeal. We hold that the failure of appellee-township's zoning scheme to provide for apartments is unconstitutional and reverse the decree of the court below.

Initially, it is plain that appellee's zoning ordinance indeed makes no provision for apartment uses. Appellee argues that nonetheless apartments are not explicitly Prohibited by the zoning ordinance. Appellee reasons that although only single-family residential uses are provided for, nowhere does the ordinance say that there shall be no apartments. In theory, an apartment use by variance is available, and appellee urges that this case thus is different from prior cases in which we severely questioned zoning schemes that did not allow given uses in an Entire municipality. See Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 228 A.2d 169 (1967); Ammon R. Smith Auto Co. Appeal, 423 Pa. 493, 223 A.2d 683 (1966); Norate Corp. v. Zoning Board of Adjustment, 417 Pa. 397, 207 A.2d 890 (1965).

Appellee's argument, although perhaps initially appealing, cannot withstand analysis. It is settled law that a variance is available Only on narrow grounds, i.e., 'where the property is subjected to an unnecessary hardship, unique or peculiar to itself, and where the grant thereof will not be contrary to the public interest. The reasons to justify the granting of a variance must be 'substantial, serious and compelling. " Poster Advertising Company, Inc. v. Zoning Board of Adjustment,408 Pa. 248, 251, 182 A.2d 521, 523 (1962). In light of this standard, appellee's land-use restriction in the case before us cannot be upheld against constitutional attack because of the Possibility that an Occasional property owner may carry the heavy burden of proving sufficient hardship to receive a variance. To be constitutionally sustained, appellee's landuse restriction must be reasonable. If the failure to make allowance in the Township's zoning plan for apartment uses is unreasonable, that restriction does not become any the more reasonable because once in a while, a developer may be able to show the hardship necessary to sustain a petition for a variance. ³ At least for the purposes of this case, the failure to provide for apartments anywhere within the Township must be viewed as the legal equivalent of an explicit total prohibition of apartment houses in the zoning ordinance.

Were we to accept appellee's argument, we would encourage the Township in effect to spot-zone a given use on variance-hardship grounds. This approach distorts the question defore us, where is whether appellee must provide for apartment living as part of its Plan of development. Cf. Eves v. Zoning Board of Adjustment, 401 Pa. 211, 164 A.2d 7 (1960).

By emphasizing the possibility that a given land owner Could obtain a variance, the Township overlooks the broader question that is presented by this case. In refusing to allow apartment development as part of its zoning scheme, appellee has in effect decided to zone Out the people who would be able to live in the Township if apartments were available. Cf. National Land and Investment Co. v. Easttown Twp. Board of Adjustment, 419 Pa. 504, 532, 215 A.2d 597, 612 (1965): 'The question posed is whether the township can stand in the way of the natural forces which send our growing population into hitherto undeveloped areas in search of a comfortable place to live. We have concluded not. A zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid future burdens, economic and otherwise, upon the administration of public services and facilities can not be held valid.'

We emphasize that we are not here faced with the question whether we can compel appellee to zone All of its land to permit apartment development, since this is a case where Nowhere in the Township are apartments permitted. Instead, we are guided by the reasoning that controlled in Exton Quarries, supra. We there stated that 'The constitutionality of zoning ordinances which totally prohibit legitimate businesses * * * from an entire community should be regarded with particular circumspection; for unlike the constitutionality of most restrictions on property rights imposed by other ordinances, the constitutionality of total prohibitions of legitimate businesses cannot be premised on the fundamental reasonableness of allocating to each type of activity a particular location in the community.' 425 Pa. at 58, 228 A.2d at 179. In Exton Quarries we struck down an ordinance which did not allow quarrying anywhere in the municipality, just as in Ammon R. Smith Auto Co. Appeal, supra, we did not tolerate a total ban on flashing signs and in Norate Corp., supra, we struck down a prohibition on billboards everywhere in the municipality. Here we are faced with a similar case, but its implications are even more critical, for we are here dealing with the crucial problem of population, not with billboards or quarries. Just as we held in Exton Quarries, Ammon R. Smith, and Norate that the governing bodies must make some provision for the use in question, we today follow those cases and hold that appellee cannot have a zoning scheme that makes no reasonable provision for apartment uses.

Appellee argues that apartment uses would cause a significant population increase with a resulting strain on available municipal services and roads, and would clash with the existing residential neighborhood. But we Explicitly rejected both these claims in National Land, supra: 'Zoning is a tool in the hands of governmental bodies which enables them to more effectively meet the demands of evolving and growing communities. It must not and can not be used by those officials as an instrument by which they may shirk their responsibilities. Zoning is a means by which a governmental body can plan for the future--it may not be used as a means to deny the future. * * * Zoning provisions may not be used * * * to avoid the increased responsibilities and economic burdens which time and natural growth invariably bring.' 419 Pa. at 527--528, 215 A.2d at 610. Cf. Delaware County Community College Appeal, 435 Pa. 264, 254 A.2d 641 (1969); O'Hara's Appeal, 389 Pa. 35, 131 A.2d 587 (1957). That reasoning applies equally here. Likewise we reaffirm our holding in National Land that protecting the character--really the aesthetic nature--of the municipality is not sufficient justification for an exclusionary zoning technique. 419 Pa. at 528--529, 215 A.2d at 610--611.

This case presents a situation where, no less than in National Land, the Township is trying to 'stand in the way of the natural forces which send our growing population into hitherto undeveloped areas in search of a comfortable place to live.' Appellee here has simply made a decision that it is content with things as they are, and that the expense or change in character that would result from people moving in to find 'a comforable place to live' are for someone else to worry about. That decision is unacceptable. Statistics indicate that people are attempting to move away from the urban core areas, relieving the grossly over-crowded conditions that exist in most of our major cities. Figures show that most jobs that are being created in urban areas, including the one here in question, are in the suburbs. New York Times, June 29, 1969, p. 39 (City Edition). Thus the suburbs, which at one time were merely 'bedrooms' for those who worked in the urban core, are now becoming active business areas in their own right. It follows then that formerly 'outlying', somewhat rural communities, are becoming logical areas for development and population growth--in a sense,...